Featured Philosopher: Javier Hidalgo

Javier S. Hidalgo specializes in political philosophy and applied ethics. He is an assistant professor of leadership studies at the University of Richmond. He earned his PhD at Princeton University in 2011.

The Individual Ethics of Immigration

Javier S. Hidalgo

I want to first thank Meena for her generous invitation to contribute to this blog! The following discussion draws on a forthcoming paper of mine, which you can find here.

Most states heavily restrict immigration. They erect walls topped with barbed wire, detain migrants at borders, and routinely deport unauthorized migrants and failed asylum-seekers. These policies stop millions of people from immigrating.

Many people think that immigration restrictions are permissible. I disagree. Like Joseph Carens and other authors, I think that immigration restrictions infringe on valuable freedoms, such as freedom of association and occupational choice, and are objectionable for this reason. Immigration restrictions coercively trap millions of people in conditions of poverty and oppression.

I’m not an absolutist. I can grant that immigration restrictions may sometimes be justified, although I’m very skeptical that actual immigration restrictions are permissible. But I don’t want to make the case for open borders here.[i] Instead, I want to focus on what follows if justice requires broadly open borders.

It is easy to feel despair if you favor free immigration. Almost everyone rejects open borders. You only need to observe the rise of nativist movements in Europe and the United States to see that free immigration is a political non-starter. Even advocates of open borders concede that this policy is utopian.

Let’s assume then that (a) justice requires open borders and (b) open borders are politically infeasible. If (a) and (b) are true, then arguing for open borders appears to be an exercise in moralistic futility. Why bother defending open immigration if it’s never going to happen?

But lately I’ve been thinking about the ways in which the ideal of open borders could matter for individual conduct, even if free immigration is infeasible. I now want to discuss one way in which this ideal could inform individual ethics.

When states restrict immigration, they do more than authorize state employees to stop people at the border and deport migrants. States enforce immigration laws by imposing legal obligations on private citizens. Here are some examples:

Governments forbid employers from hiring unauthorized migrants.

In certain jurisdictions, landlords are obligated to refuse to rent to unauthorized migrants and evict them if they discover their immigration status.

Transportation companies must sometimes screen their passengers and decline to transport unauthorized migrants, even within the borders of a state.

In the United Kingdom, banks are required to check the immigration status of their customers and decline to open bank accounts for unauthorized migrants.

States also more often compel government employees to monitor immigrants and report them to immigration agencies. For instance, police officers and civil servants may be required to check the immigration status of people that they interact with and report them if they are unauthorized migrants.

In these ways, states conscript ordinary citizens to assist in abridging the rights of unauthorized migrants, and in deterring unauthorized immigration.

If justice requires open borders, then these laws are clearly unjust. But notice that these laws make citizens complicit in violating the rights of migrants. After all, if citizens refused to obey these laws, then they would be entirely ineffective. And, in fact, some citizens do disobey these laws and thereby render them less effective than they would otherwise be.

My claim is that we are morally required to disobey laws like (1-5). Why? It is pro tanto wrong to contribute to violating the rights of others, and these laws compel us to help violate the rights of unauthorized migrants. Consider an example. Imagine that the owner of a restaurant discovers that some of her employees are unauthorized migrants. Depending on the jurisdiction, the law may require this employer to fire these workers. Compliance with this law would in effect erode migrants’ rights to freedom of occupational choice. So, if the owner of the restaurant complies with this law, she would contribute to violating the rights of these migrants. At first glance, the owner has moral reasons to refrain from facilitating rights-violations. If these reasons defeat countervailing considerations, then she is morally required to disobey the law.

Many citizens are more-or-less in the position of the restaurant owner in this example. They often interact with unauthorized migrants and they face a choice: should they be complicit in violating the rights of unauthorized migrants?

You might say: disobeying the law is too risky. States punish people who break the law and we aren’t required to bear these risks. Two quick responses to this concern. First, it is not always very risky to disobey the law. For example, employers in the United States (notoriously) face little risk of punishment for hiring unauthorized migrants. Most get away with it.

Second, sometimes morality requires us to perform risky or costly actions. Suppose the government conscripted you to fight in an unjust war and, if you obey, there is a significant risk that you will end up killing a morally innocent person. My view is that you are obligated to sit in a jail cell (or emigrate) rather than comply, despite the fact that defiance may be costly.[ii] While the stakes are obviously lower when it comes to compliance with laws like (1-5), it remains the case that citizens can be obligated to refrain from contributing to injustice even though this has significant costs for them.

You might object: we have duties to obey the law. I’m a philosophical anarchist and, so, this concern has little weight for me. But, even if we do have duties to obey the law, almost everyone agrees that these duties can be overridden. It is plausible that, if the law requires you to violate the basic rights of other people, then the reasons to avoid violating rights can outweigh the reasons to obey the law. Advocates of open borders say that immigration laws violate basic rights. If that’s correct, then we lack duties to obey these laws.

In other areas of practical ethics, philosophers focus on individual action. For example, philosophers debate whether it is wrong for individuals to purchase animal products or contribute to climate change. In contrast, philosophers who write about immigration focus almost entirely on public policy. But a similar individualist project is possible in the ethics of immigration. The injustice of immigration restrictions could matter for individual conduct. Even if open borders are infeasible, the ideal of open borders could help guide how we live our lives.

[i] For some excellent defenses of open borders, see: Michael Huemer, ‘Is There a Right to Immigrate?’, Social Theory and Practice, 36.3 (2010), 429–61; Joseph Carens, The Ethics of Immigration (New York: Oxford University Press, 2013); Bryan Caplan and Vipul Naik, ‘A Radical Case for Open Borders’, in The Economics of Immigration, ed. by Benjamin Powell (New York: Oxford University Press, 2015), pp. 180–209; Kieran Oberman, ‘Immigration as a Human Right’, in Migration in Political Theory: The Ethics of Movement and Membership, ed. by Sarah Fine and Lea Ypi (New York: Oxford University Press, 2016), pp. 32–56.

[ii] My views on these matters have been heavily influenced by Jeff McMahan’s arguments in Killing in War (New York: Oxford University Press, 2011).